ON Friday the US Supreme Court rejected a church’s challenge to California’s COVID-19 restrictions by a 5–4 vote.
The ruling proved a bruising not only the South Bay United Pentecostal Church, which brought the case against Governor Gavin Newsom, but for Brett Kavanaugh, above, Donald Trump’s controversial appointee to the court.
Mark Joseph Stern, writing for Slate, observed that Chief Justice John Roberts had not only indicated that he would not join conservative judges’ escalating efforts to override public health measures in the name of religious freedom, but that Kavanaugh, in Stern’s words:
Falsely accused the state of religious discrimination in an extremely misleading opinion that omits the most important facts of the case. Roberts went out of his way to scold Kavanaugh’s dishonest vilification of the state.
Newsom’s current COVID-19 policy limits attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower. At the same time, it allows certain secular businesses, like grocery stores, to operate under looser guidelines, allowing more people to enter. The church claimed this disparate treatment between churches and commercial establishments runs afoul of the First Amendment.
Kavanaugh, in dissent, viewed the case through a different lens. Whereas Roberts began by noting that COVID-19 has ‘killed thousands of people in California and more than 100,000 nationwide,’ Kavanaugh crafted a narrative of invidious religious discrimination. His dissent reads like a brief by the church, not a judicial opinion.
Kavanaugh alleged that Newsom’s order ‘indisputably discriminates against religion’ in violation of the free exercise clause. For support, the justice insisted that ‘comparable secular businesses,’ like grocery stores and pharmacies, ‘are not subject’ to the same restrictions imposed on churches. California must have a ‘compelling justification’ for this disparate treatment, and he saw none.
But Kavanaugh’s assertion that California treats churches and ‘comparable secular businesses’ differently begs the question: what is a comparable secular business? When it comes to the spread of infectious disease, is a church really just like a grocery store, where people spend as little time as possible, separated by aisles and shopping carts, rarely speaking to one another? Or is it more like a concert, where people congregate for lengthy periods, shoulder to shoulder, often speaking or singing and thereby spreading droplets that may contain the coronavirus?
What is genuinely shocking about Kavanaugh’s dissent is that he does not even address this question. The dispute lies at the heart of the case, and Kavanaugh ignores it. He simply takes it as a given that churches are ‘comparable’ to grocery stores when it comes to risk of spreading COVID-19. By warping the facts, Kavanaugh paints California’s rules as irrationally discriminatory, when in fact they are based on medical advice Newsom has right now.
If the justice wants to override public health measures during a pandemic, shouldn’t he at least admit that he’s substituting his own scientific judgment for that of a democratically elected lawmaker’s?
Roberts seems to think so. His opinion ends with a clear swipe at Kavanaugh: ‘The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.’
Roberts went out of his way to telegraph his displeasure with the raft of lawsuits contesting COVID-19 restrictions as unconstitutional burdens on religious liberty …
As long as Roberts has anything to say about it, the Supreme Court will not facilitate the spread of a deadly virus in the name of the First Amendment.